Draughon v. Harnett County Board of Education6/3/2003
1, 6, 330 S.E.2d 242, 247 (1985), rev'd in part on other grounds, 317 N.C. 321, 345 S.E.2d 201 (1986). See also Best v. Perry, 41 N.C. App. 107, 110, 254 S.E. 2d 281, 284 (1979); Edwards v. Bank, 39 N.C. App. 261, 269, 250 S.E. 2d 651, 657 (1979). Consequently, " he plaintiff is not required to present evidence to support his or her claim unless the defendant meets the initial burden of proof." Watts, 75 N.C. App. at 6, 330 S.E.2d at 247.
The majority opinion fails to address what evidence, if any, the defendants produced to prove that an essential element of plaintiff's claim was either non-existent or unsupported. Notwithstanding this lack of analysis, it is apparent from the record that defendants substantially relied upon the affidavit of Marshall Hinson, a parent who attended the football practice in which Max Draughon collapsed from heat stroke. According to Mr. Hinson's affidavit, "when found out that Max [Draughon] died, simply could not believe that anything that saw at practice . . . caused to die. From what [Mr. Hinson] could tell, the coaches did not do anything wrong." Furthermore, "it never occurred to [Mr. Hinson] that it was too hot or humid for football practice or running at the end of practice." Most assuredly, this evidence was insufficient, particularly in a negligence case, to meet defendants' initial burden of "proving" that an essential element of plaintiff's claim was either non-existent or unsupported.
Under well-settled principles, summary adjudications are disfavored in negligence cases "because application of the prudent [person] test, or any other applicable standard of care, is generally for the jury." McFetters v. McFetters, 98 N.C. App. 187, 191, 390 S.E.2d 348, 350 (1990). See e.g., Camalier v. Jeffries, 340 N.C. 699, 710, 460 S.E.2d 133, 138 (1995); Page v. Sloan, 281 N.C. 697, 706, 190 S.E.2d 189, 194 (1972). "Hence it is only in exceptional negligence cases that summary judgment is appropriate because the . . . applicable standard of care must be applied, and ordinarily the jury should apply it under appropriate instructions from the court." Easter v. Lexington Memorial Hospital, Inc., 303 N.C. 303, 305, 278 S.E.2d 253, 255 (1981) (citations omitted). Nevertheless, the majority affirms the trial court's summary judgment on one fundamental basis: "Plaintiff failed to rebut defendants' affidavit supporting no breach of fiduciary duty by defendants."
The majority will not allow a jury to consider undisputed facts -- and disputed facts that should be resolved in favor of the non-movant -- sufficient to establish a prima facie case of negligence ostensibly because the affidavit of one parent suggested that defendants did not breach the duty of reasonable care and supervision. I note, the verified complaint of Ms. Draughon, the mother of Max Draughon and the personal representative of his estate, shows (1) she entrusted her son to the coaches of the high school football team, (2) her son complained to the coaches that he was "burning up" and asked for water before and between "wind-sprints," (3) the coaches refused his request and required him to continue running "wind sprints", and (4) as a result of this intense exercise in the heat and humidity of early August, her son collapsed on the field and later died from heat exhaustion.
The ultimate issue of negligence is a matter for a jury to decide; it should not be decided based upon the opinion of a lay witness. In my view, notwithstanding the affidavit, questions of fact remain for a properly instructed jury to decide. Therefore, I respectfully dissent.
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